Decision Date: 20th December 2022
In 2019 Lambeth Council repeatedly promised Mr C, an adult living with his aunt, Mrs B, that they would carry out a Mental Capacity Act assessment (MCA) to discern his capacity to make decisions in relation to where he should live or stay, if or when he might no longer be able to live with his Aunt.
Mr C’s combined Education, Health and Care Plan provided for work and college placements. Although the Care Act care plan did not say what sum the the personal budget added up to, it did envisage funding for 14 support hours, plus 3 hours for transport to his work placement.
Later that year, when college started, 8 hours of PA support time was offered for transporting him to college. The plan said Mr C could use the direct payments either to employ a PA or otherwise pay a taxi to transport him and could then top-up travel costs (implicit in the context was that this was not being recommended for any extra journeys for any other activities) using his PIP benefits.
Due to Covid or to the need to appeal to the Tribunal for another year at college, Mr C had not been going to college in 2020-21, from what one can tell. It is not clear why he wasn’t attending the work placement either, (more likely due to Covid, given the dates) but Mrs B’s Carer’s Assessment found her to be an eligible carer and noted that she was feeling burnt out and in need of specific breaks from the now virtually full time responsibility of care for Mr C.
She intended to spend Friday nights at her partner’s home, have 3 or 4 weekends away for her Scout role and wanted support to access training and return to leisure activities. Despite her eligibility, no subsequent support plan or personal budget for her was forthcoming. Being away overnight would mean overnight respite was required for Mr C.
In Spring 2021 Mrs B informed the Council that Mr C intended to return to his work one day a week, and college from September onwards. It was not practical for Mrs B to escort him in the taxi to his work placement as the travel was 1.5 hours each way. She requested transport for them which the Council agreed to organise before stating they would assess Mr C’s capacity around his ‘future accommodation options’.
At one point before college started, the Council’s position was that 8 of Mr C’s support hours at college provided Mrs B with respite in and of themselves negating the need for cover in either plan. a separate support plan, some of Mrs B’s eligible needs were not met in any care OR support plan which was unacceptable.
As mentioned, in September 2021 it offered a further 8 hours direct payment for a personal assistant to escort Mr C to and from college 4 days a week, and suggested use of the existing direct payment for 3 hours travel to the work placement also be used in that way.
Mrs B advised that if Mr C used a regular taxi service, then he also needed an escort, which she was covering for the work placement. The College advised that an unescorted or non-specialised taxi was unsuitable, and the Council said it would obtain taxi quotes to provide the service itself in lieu of the direct payment but Panel approval would be required. Mrs B acted as escort for the whole of the autumn to both places.
In January, Mr C became able to cope with the journeys to, but not back home from, his college.
By March 2022, his budget for support hours at the work experience café was reduced by 1 hour. He was to be supported for 2.5 hrs for that journey, although Mrs B would escort (half an hour less than before); 8 hours for travel to and from college on 3 days a week rather than 4, for some reason, but Mrs B escorting home meant funding was only required for 3 hours only (unclear from the report how this was worked out); and the same number as before of support hours for general independent living skills. This was a total of 26.5 support hours (erroneously recorded as 25) to be funded from a personal budget of £331 (roughly £13 per hour). Direct Payments were agreed to be terminated and the council undertook to organise it all.
However, incidents related to the ongoing unsuitability of the transport led Mrs B to make safeguarding referrals and to highlight that half of the college support hours were not in fact being provided due to the agency provider’s lack of capacity.
Mrs B complained to the Council concerning the failure to conduct Mr C’s MCA assessment and to plan for any suitable respite accommodation. In response the Council stated an MCA had not actually been necessary or appropriate until a setting had been found, capacity being time and decision specific but that one would now take place as a proposed respite service had been identified.
Mrs B also complained that the work placement funding should have been coming from special needs and disabilities (SEND) funding and not from adult social care (ASC). The Council said they would contact the SEND team to look into this. Mrs B complained that as Mr C only received half of his 1:1 agency support hours, his direct payments should be reduced to reflect this as she was concerned about the affordability of his care contribution amounts. The council responded that contribution amounts were based on a person’s resources, not the support they received, but that a new DRE form would be provided. Mrs B also complained about the transport provision. The Council claimed to have resolved this with her agreement, but given Mrs B then took the complaint to the LGSCO, it does not seem that she agreed.
Finally Mrs B complained about the lack of both a carer’s assessment and any support plan documents for her. A general statement was made regarding the possibility that a carer’s support would be found to be reflected in the service user’s own care plan.
A review of Mr C’s needs in April 2022 noted that Mr C had difficulty understanding and communicating. Mrs B queried whether it would be appropriate to charge Mr C for respite which was for her benefit, probably referring to the unused and unfillable hours on his plan for 1:1 assistance for daily living activities.
The subsequent revision of Mr C’s care plan reduced his personal budget to £178.20. The PLAN itself still included the work placement support despite an agreement that SEND would pay for this. The 8 agency hours were still included and costed for (£107), as was £65 for unspecified time at the cafe. Nothing was included for transport.
The Council explained that this was because it believed Mrs B was no longer asking for travel funding, and SEN was taking over the cost of the support for college and work placement settings. It said that information about DRE was provided to all clients and Mrs B had not made a specific claim (it had presumably provided the £10 standard allowance its policy referred to as offered to anyone with income sufficient to justify charging.
What was found
The LGSCO upheld the complaint in relation to the MCA assessment, noting that Lambeth had concerns around Mr. C’s capacity to make decisions in relation to respite or future accommodation and that an MCA assessment had been repeatedly promised but never carried out (not even by the time of the findings). This was fault.
Also, it was found to be incorrect to say there were no decisions to make requiring an MCA assessment; both Mr C and Mrs B wished to establish which accommodation options may be available to them, including in an emergency, but the lack of an MCA assessment and the failure to identify a setting for a decision and thus a capacity assessment was fault.
The complaint was also upheld regarding transport, as having agreed that a transport service was needed to meet his eligible needs, getting Mr C there went along with that as part and parcel of the duty unless there was another appropriate way of meeting that need. Adequate notice of over 4 months had been given of the commencement of college. Failing to properly assess the scope and nature of the transport need, at all, or in a timely manner, was fault, which caused Mrs B an injustice when she had to provide the support by default, instead.
Regarding Mrs B’s support plan no carer’s grant (of an unspecified amount, but regarded as promised in April 2021) had ever been paid. The LGSCO noted that failing to provide Mrs B with a formal written support plan after a carer’s assessment was a clear fault. The investigator thought that the 1:1 support for daily living had created some respite for her, but it was not written up properly, which led to dissatisfaction and difficulty in distinguishing what was driving a request for further respite. Also, Mrs B had requested specific support including overnight breaks but the Council did not say whether these had been agreed.
Only one plan had ever specified a personal budget. This was fault, which may be explained by confusion between the nomenclature around personal budgets and direct payments, the investigator thought. The combining of the care plans and budgets without consultation was wrong.
Also, the failure properly to consider potential duties to provide college transport arising from the Education Act (s508 F 2) rather than under the Care Act, was also fault, which given the potential to affect Mr C’s personal budget and his charges, may additionally have caused a financial injustice.
There were no calculation errors in the financial assessment or in the assertion that PIP mobility could be used to top-up unmet transport costs, as far as the investigator was concerned. However, the investigator did not agree that Lambeth HAD ever provided Mrs B with DRE information, and this was fault.
In terms of remedy, the LGSCO requested that within two months the Council would:
- carry out the outstanding MCA assessment and
- consider its transport duties under the Education Act and then provide a written decision relating to that.
Having completed 1) & 2) the Council should then review Mr C’s care plan which should be reflective of the decisions made in 1) & 2) and provide a new and accurate personal budget relating to that care plan. Thereafter a new financial assessment should be carried out which considered DRE evidence and any reduction in Mr C’s contribution should be backdated by 21 months.
The Council should also provide Mrs B with a support plan, define the amount of any response by way of meeting her needs, and pay over any sum due, providing both with a written apology for the faults outlined and pay her £500 for the lack of or delays with transport provision and assessments.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The findings reflect a state of chaos across the assessment care planning and charging teams and system-wide ignorance of the law and guidance, in our view. But we have to disagree with some of the report, in terms of the legal framework, too.
The report references several contentious areas regarding the law: the interplay of transport duties, solutions and so called ‘top-ups’ from one’s mobility allowance for funding it; the legality of combining a plan and a budget of two people, without agreement, and the interplay between respite being a service user’s service, despite giving respite to a carer, and the charging implications of that.
Top ups (paying more are for wants and not needs. A person cannot be told to meet their own needs from their own money. The position with mobility allowance is that it is invisible to all councils, by law. It only becomes relevant when DRE is claimed, ie private expenditure over and ABOVE one’s mobility allowance is to be deducted. The fact that one qualifies FOR mobility allowance may be relevant to other legitimate solutions for covering transport (ie public transport as a concession) but only if that means is suitable for the individual and the purpose in question.
A council is allowed to define a budget as the cost it rationally expects to have to pay, taking all relevant considerations into account. What it expects to have to pay does not mean that it can impose a flat rate on an element within a package and just shut its eyes to the unsuitability of the means covered by that rate, or the insufficiency of the rate for the number, distance or skill level required on journeys for that person.
So there’s an area ripe for debate here: is any council’s allowance for a given element of a package a rational estimate of the cost per item/journey/task, or an unlawful fetter regarding the rate being offered – and even if a good enough rate, is it an arbitrary amount of funding, because it only allows a reasonable cost for a set number of hours?.
Regarding the transport provision, as the LGSCO mentions, Lambeth also failed to give due consideration to its duties under s508F of the Education Act 1996, specifically in relation to providing free transport under ss.508F(1) and(4) if the purpose-related criteria set out in sub-section(2)(b) were met as in this case: to facilitate the attendance of an adult within the further education sector. That would have reduced his budget; and that could have affected his charges if the reduction took the cost of his adult social care service below his assessed charge (see below under Charges).
Although transport was identified as an eligible need, the Council’s failure sufficiently to probe and understand the scope of that need, during assessment, led to the provision offered being inadequate and indefensibly unable to meet that need. That is, despite all other opinions indicating a taxi and an escort were required, the Council’s offer was for either a taxi or an escort but not both, without a rationale. That’s clearly a financially driven decision, which makes it unlawful in terms of public law and not mere fault.
Lambeth stated transport could be supplemented by paying a ‘top-up’ from PIP mobility benefit. Presumably, this ‘top-up’ suggestion was made in response to hearing but not accepting that the more expensive ‘twin provision’ was needed to make the transport arrangements viable; so the notion of a top up (for a want or a preferred method of meeting need) was clearly and unarguably NOT in play – so even suggesting it – so that it could be volunteered, potentially, would have been misleading.
We think that there are big differences in the following stances
- that one will be given adequate funding for the transport NEED, in any event, but that one might want to use one’s mobility payment to top up to meet that need in a preferred way (lawful) (DRE for any excess not being likely, because one is meeting a want, not a need.)
- that the council will meet that mobility need if one’s eligibility for mobility allowance does not open up another free suitable way of meeting the need, adequately or suitably to get to the relevant service (lawful);
- that one’s invisible Mobility Allowance (invisible to the assessment of means) can be used and therefore must be used because all that a council will pay is £x – a flat rate that takes no account of the individual’s needs (unlawful).
And that is why compensation in the nature of restitution was appropriately warded to Mrs B – for the fact that she’d had to do what the council should have been funding, even under its own documentation based on the eligibility by way of transport in the first place.
The CP v NE Lincs case is the authority for that approach on the part of the investigator – Court of Appeal, 2019, but never referenced in LGSCO reports as far as we can tell.
Combining two people’s budgets
It seems obvious to us that the investigator has overlooked Section 25(11) of the Care Act which says this: (nb it is noteworthy that there is absolutely no means for the consent condition for an incapacitated adult being exercised by a proxy, or even an attorney or deputy or Authorised Person in the case of direct payments under s32 of the Act.)
(11) A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—
(a) where the combination would include a plan prepared for another adult, that other adult agrees;
(b) where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.
The Guidance says this on this subject, although it is generally ignored, we find, in practice:
10.73 Local authorities should not develop plans in isolation from other plans (such as plans of carers or family members, or Education, Health and Care plans) and should have regard to all of the person’s needs and outcomes when developing a plan, rather than just their care and support needs.
[10.74] …..In all circumstances, the plan should only be combined if all parties to whom it is relevant agree and understand the implications of sharing data and information. It is the responsibility of the local authority to obtain consent from all parties involved, and the combination of plans should aim to maximize outcomes for all involved.
10.78 Where it has been agreed to combine the plan with plans relating to other people, it is important that the individual aspects of each person’s plan are not lost in the process of combining plans. The combined plan should reflect the individual needs and circumstance for each person involved, as well as any areas where a joint approach has been agreed to meet needs in a more effective way.
Respite is a service for a service user in the vast majority of cases. It is a euphemism for cover due to a carer’s unavailability, which is a matter of choice for carers, in the strict sense of the legal framework. In this context, we don’t understand why nobody thought of Mrs B being advised to find someone to come to her house overnight for Fridays, and just paying them a sleep-in allowance?
We think that the issue apparently focusing on Mental Capacity Act assessment was in fact driven a front for another concern that councils appear to have, about the legality of their paying for unregistered overnight respite off site from the person’s own home. It’s an issue we see, often, with several councils trying to insist that a person goes to overnight respite only ever with registered Shared Lives carers (because they don’t need to be registered as care homes even if they are providing care together with accommodation) if the scheme itself is registered.
We think that this wrong, and that it is ridiculous to suggest that a night or even a few nights away from home triggers registration for personal care purposes or care home purposes.
It’s an issue that CQC should be clarifying, in our view: after all, the law on which all supported living depends, for registration merely of the CARE being provided in the place where the person is living, is that there is separation between the accommodation arrangement and the care, by virtue of a tenancy!
We think that the law is that any person can spend a night in another person’s house without their being registered because it does not amount to going there to LIVE; it could be seen as a holiday, and it does not trigger registration even if assistance with personal care is needed. If the destination household puts together a licence (which need not carry any charge) for the accommodation for one night a week, then it can be seen that the individual is simply availing himself of an invitation to spend a night elsewhere – where his direct payment will pay for any care or support required, without the need for registration, because it is a direct payment being spent on care for that person directly. If fully lacking in capacity the person in charge of that person’s direct payment is likely someone who can arrange that licence for them with anyone they like; Authorised Persons have lawful authority to manage the direct payment without that triggering registration of any sort, and the licence will separate the care from the accommodation, and establish that it is a short break, the person’s ordinary living arrangements remaining unaltered – we would suggest.
Mental capacity assessment in this context
Finally, although the LGSCO takes firm line in the ‘chicken and egg’ approach of Lambeth to the mental capacity question (– finding a suitable setting before any such assessment or only looking for a service once an assessment had been done?) when noting that the lack of an MCA assessment had obstructed elements of care planning related to respite, we do not agree that overnight respite necessarily involves a capacity assessment for a person before they go on a holiday. The logic would be that if it did, any Shared Lives Carer or other person would need to have a community DoL order sorted out for them if the ordinary carer had doubts about a person staying put! If a person obviously lacking in capacity was going to residential respite once a week or FOR a week, we doubt that a DoL would be being put in place by the council, and yet that would be the logic of the situation if anyone was worried that the person might not stay put! We think that in the real world, this is one of those questions that would be answered by dint of the approach taken in ordinary residence scenarios for people with learning disabilities or otherwise impaired cognitive grasp where their relatives have simply moved them to a new area, or placed them temporarily: ie if they’re seemingly happy to go and to stay, and there’s no suggestion of abuse in that decision, one should treat the presumption of capacity as retained.
Contributions (charges) are not usually affected by adding something into a care plan that was not there before or failing to reduce a budget when an aspect of it is not needed or can’t be spent, because charges will always have been worked out by the means assessment which makes the charge the maximum affordable without regard to the precise contents. The cost of the services is the maximum that a person could be expected to pay. So if a person is well off, and is paying for all of their care package, THROUGH the application of the means test, and something new is put INTO that package, it is logically possible that they might indeed be assessed to pay MORE than before but not likely. The same would be the case for a failure to reduce the budget. We think that a council ought to have been able to provide this information very easily. But the fact that all the services should ultimately have come out of the Education budget would have made a much bigger impact on the comparison between Mr B’s charges and the cost of any remaining adult social care funding, which is why it all needed carefully calculated as to what should have been where and for how long.
Also with regard to transport, but again not highlighted in this particular report, is the potential problem with the council’s “post-16 travel policy” which states “young people with difficulties and disabilities who are 19 years old or older should contact the Council’s Adult Social Care Department for consideration for travel support.” This correctly indicates that the required ‘consideration’ will be given. However, perhaps this could also be interpreted as saying that transport age 19+ is always discretionary, which, given the duty to provide transport for some students under the Education Act would be an error of law, and a fetter of the Council’s functions.
It is unclear why the LGSCO has not highlighted this potential issue, given that it has done so in previous reports including in London Borough of Bexley (18 015 847) relating to the duty to provide free travel to college, or Birmingham City Council (17 017 296) reinforcing that the transport needs of an adult in education are relevant considerations when assessing needs.
There remain several other points of interest which the LGSCO appears to have ignored, including whether Lambeth should have immediately offered a reassessment to Mr C when Mrs B expressed concerns about an inability or unwillingness to pay a transport ‘top-up’, or her continuing to fill in the transport gap, or even in response to the safeguarding transport concerns or the 1:1 support agency’s inability to provide all of Mr C’s support hours – itself an issue that might have repaid further scrutiny.
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The full Local Government Ombudsman report on the actions of the London Borough of Lambeth Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/22-000-794